The Law of 12 June 2001 against Cult Movements Infringing Human Rights

The law of 12 June 2001 against cult movements infringing human rights

Also worth reading: The CICNS “Mental Manipulation” dossier Arch. de Sc. soc. des Rel., 2003, 121, (January–March 2003) 149-166 - Patrice ROLLAND

Anatomy of a legislative debate Why was this law against cults adopted in 2001, when it had for so long been ruled out, in particular by the two parliamentary reports? The Mission interministérielle de lutte contre les sectes (MILS — the Interministerial Mission for the Fight against Cults) still considered in 2000 that “specific legislation is not justified”, without however excluding a strengthening of existing legislation (1). No circumstantial event motivated this initiative.

The annual reports of the MILS asserted that the scourge had been contained and was no longer growing (2). Was it the conclusion of the debate under way for twenty years, and the fruit of a very active anti-cult militancy whose proposals had long been known? The legislator could legitimately ask the question: not only should one, but could one, legislate on cults? The Strasbourg colloquium of June 1997 had brought out very clearly, from a systematic survey by branch of law, that the ordinary law had entirely adequate means to deal with the phenomenon in the absence of specific legislation on cults (3). Even those most hostile to cults accepted at least to question the feasibility of such a law, and acknowledged that it is difficult to draft (4). One could doubt the usefulness of further strengthening the penal code (5); or object that texts exist in sufficient number and that it was pointless to pile up legal or regulatory provisions. “May liberty emerge the winner of this discussion!” concluded D. Hoeffel after this questioning (6). An anatomy of the legislative debate makes it possible to measure how the legislator assessed the social necessity of its intervention, and in what way it held the balance between liberty and the maintenance of public order. Its intervention appears, in the end, rather embarrassed despite the consensus displayed with an insistence that cannot mask the ambiguity of its position.

From a legislative point of view, there were three possible positions with regard to cults: adopt a specific law; rely on the ordinary law as it exists, subject to ensuring the effectiveness of its application (7); or strengthen the ordinary law on certain sensitive points. It was this last solution that was retained, although, by its title, the law appears to fall under the first option.

The law of 12 June 2001 is explicitly a law against cults. Five major provisions make it a law of repression that could prove formidable if circumstances lend themselves to it: civil dissolution of certain legal entities; extension of the criminal liability of legal entities; limitation of the publicity of cult movements; punishment of the fraudulent abuse of a state of ignorance or weakness; the right for certain associations to join proceedings as civil parties. The origin of the text is a private member’s bill by Senator About, adopted in December 1999, which simply intended to make the 1936 law against combat groups and private militias applicable to cults (8). The National Assembly, on 22 June 2000, following an amendment by Catherine Picard, introduced into the text under debate the offence of mental manipulation, along with many other amendments. On second reading, on 3 May 2001, the Senate corrected the text substantially, and the deputies passed it definitively without major modifications on 31 May 2001. Parliamentarians stressed again and again the consensual character of the debate. There was no recorded vote either in the Senate or in the National Assembly, and only exceptionally does one find an explanation of a negative vote (9). There was great unanimity among the speakers as to the self-evidence of the cult danger. Even the rare parliamentarians who warned of the difficulty of analysing the phenomenon did not go back on that self-evidence. It is true that the debates were largely led by the group of parliamentarians specialised in the fight against cults (10). In these conditions the consensus invoked seems rather to have been acquired by default. This underlines a strange perception of the cult phenomenon: an apparent self-evidence of the danger justifying fairly strict repression, and a weak mobilisation for a law concerning a fundamental liberty. Some differences nevertheless emerged in the motivation of the vote. Anti-Americanism flourished on the left (11).

The criticism bears on American liberalism with regard to cults but, behind this assessment, there is a more or less explicit option on the liberty that cannot be granted to one’s enemies. Left-wing parliamentarians, though less massively, also used the theme of the battle of the Enlightenment against obscurantism (12). Conversely, the only reservations expressed — not on the general aim but on the concrete conditions of the law — came from the centrist or liberal tendency (13). The debate did not, however, remain confined to Parliament, and had a more polemical echo outside. In September 2000, the Commission nationale consultative des droits de l’homme and the Ligue des droits de l’homme issued a negative opinion which Parliament and the government took into account. The public engagement of the Churches and of the representative bodies of the various religions was massively critical and negative. The Council of Europe showed pronounced distrust of the law as passed. Without concluding that there was a clear violation of the European Convention on Human Rights, the Resolution adopted deferred to the eventual judgment of the European Court and invited the French government “to revisit this law and to clarify the definition of the terms ‘infringement’ and ‘perpetrator of the infringement’” (14).

The legislator’s embarrassment can be summed up thus: it is driven by an evident repressive will which remains, however, strongly framed by the principles of the law of liberties; but, above all, it is hampered by too vague an image of the cult phenomenon, which it is incapable of naming clearly other than by a diffuse fear — that of mental manipulation.

The paradox of the law: the presence/absence of cults A paradox between its object and its scope of application marks this law: it is expressly directed against cults, and the text as passed never speaks of them. Why not name cults in the body of the legal text when it is manifestly only about them? Two parliamentarians were troubled by this: one worried at seeing the law deal only with associations, when associations also serve as the legal framework for political parties (15); the other wondering what the law’s scope of application would be, given the vague character of the criteria used (16). This contradiction reveals the legislator’s unavowed embarrassment. We remained within the order of what D. Hervieu-Léger has called “the groping of the politicians”. They accumulated failures to grasp the notion of cults: neither the bundle of overly vague indicators, nor the parliamentary list which cannot master the deregulation of the religious, nor the criterion of “totalitarianism” which can only concern a small number of groups, were able to fulfil the role expected of them (17).

A specific law against cults according to its title The debates show plainly that Parliament has it in only for cults, indeed only for dangerous cults. This is all the more patent in that the naming of the law was the object of three explicit votes. The variation of the titles is significant enough to dwell on. Initially the About bill targeted “associations or groups of a cult character”. The Senate, on first reading, spoke of “associations or groups constituting, by their criminal actions, a disturbance of public order or a major peril for the human person”. That is the liberal formula par excellence, since it targets only acts and the maintenance of public order. The National Assembly, on first reading and with the government’s favourable opinion, introduced the term cult for the first time, speaking of a bill tending to strengthen prevention and repression against groups of a cult character (18). In the Senate, on second reading, the Commission and the rapporteur N. About proposed the formula “against cults, groups infringing human rights and fundamental freedoms”. While acknowledging that the text applies to any group, the rapporteur considers that this title must be adopted in order to “underline that our country has been through very difficult moments caused by the aggressions of cult groups” (19). Reacting to this proposal, Senator Caldaguès indicates that he refuses a text that contains no definition of the cult. In retaining the text proposed by the government, the deputies nevertheless made an important correction. The law concerns “cult movements infringing human rights”. Thus it is no longer all groups, nor even all cults, that are concerned, but only those cults which infringe human rights (20).

A general law by its application Before the Senate the rapporteur had acknowledged that the Commission had at no point used the word cult and that it had not attempted to define it. In fact, the text of the law never uses the term. Articles 1, 2 and 19 target “legal entities which…”. It follows that such groups can only be concerned by virtue of what they have done.

As for article 20, it defines the fraudulent abuse of a state of ignorance in the absolute and in relation to the victim. The consequence is that the law, once incorporated into the Penal Code without its title, applies to any group or association, as follows from the wording of article 1: “any legal entity, whatever its legal form or object” (21). The great generality of this designation evidently has the aim of fighting the legal subterfuges of cults. But, apparently too broad, it called for an oral corrective from C. Picard to exculpate the associations of the 1901 law such as political parties, trade unions, professional groupings (22).

Such an exclusion does not follow from the text of the law but solely from the clear intention of the legislator or, more exactly, of the rapporteur in the National Assembly. One might object, however, that there does exist a definition of the cult, albeit implicit and indirect. It would prevent reaching other groups or associations of the 1901 law. It would result from article 20, which targets any “group which pursues activities having as their aim or effect to create, maintain or exploit the psychological or physical subjection of the persons participating in those activities”. A cult would therefore be any group that practises mental manipulation on its members. But the definition remains, in practice, of great generality. How to define, for example, what has the effect of creating psychological subjection? Cannot a political party, a trade union also fall within such a question? Likewise, how to prove the aim of creating that subjection? No one, obviously, will say it or admit it.

What then is the scope of application of this law which, by its title, intends to concern only “cult movements” infringing rights and liberties? Must the judge keep to cults as per the law’s title — but then with what definition? Or is the law applicable to any association or group whatsoever as soon as its activities bring it within the field of the prohibited actions? The rapporteur in the Senate underlined clearly that the law applies to any group (23), contradicted on this point by the rapporteur in the National Assembly. That solution is in the end more coherent with the option of not making a specific law against cults. It is also more coherent with the laïcité of the State, which applies one ordinary law equally to all whenever religious or philosophical convictions are at stake.

The liberal explanation of this paradox One can give an explanation, favourable in terms of liberty, of the legislator’s intentions and of the content of the text passed. Two main elements in fact inscribe the law in the tradition of the law of liberties.

The refusal of a specific law Under the expression law of exception or specific law, the parliamentarians very often returned to the refusal of a law that would concern cults alone.

They took up the liberal distrust of any law departing from the ordinary law: a law equal for all is a guarantee of legal certainty and, consequently, of liberty (24). Thus, the rapporteur in the National Assembly stressed: “I wish however to insist quite particularly on the fact that the strengthening of the repressive and preventive legal apparatus against the actions of groups of a cult character is not the object of exceptional legislation: it forms part of an approach of strengthening the legislative arsenal of the ordinary law” (25). To go in this direction of respect for the ordinary law, he insisted that the principle of judicial dissolution be adopted rather than administrative dissolution of cult associations. This option was relayed at various moments of the debate by many other parliamentarians. All are sensitive to not creating an offence or a regime specific to cults (26). The Garde des Sceaux (Minister of Justice) underlined before the Senate that the offence of fraudulent abuse had not been created specially against cults, but that it was an old offence fallen into disuse and reactivated during the drafting of the new penal code: “I feel a certain satisfaction in noting that it is a traditional offence which, subject to having twice undergone a ‘rejuvenation cure’, will in future make it possible to repress and, I hope, to prevent effectively the dérives sectaires that our society unfortunately experiences today” (27). The parliamentarians thus took up the choices of the first parliamentary report on cults, which had concluded that “a regime specific to cults is inopportune” (28).

What meaning should be given to such insistence? One must see in it a concern for non-discrimination. Cult membership or activity are treated according to the ordinary law, that is, like any other membership or activity.

One must not, however, exaggerate the liberal import of this parliamentary attitude.

On the one hand, it remains perfectly possible to make the ordinary law heavier; on the other, the strengthening of the ordinary law can be done by measures which, in practice, would target only cults. One thinks of the offence of mental manipulation retained for a time. Nor, finally, should one forget the explicit intention of excluding certain types of association from the application of this law (parties, trade unions, …). Such an attitude may nevertheless explain the refusal to name cults explicitly inside the law, and the contentment with evoking them in the title.

Grasping cults in their acts and not in their essence That is, certainly, the liberal approach par excellence; but perhaps it is a somewhat constrained liberalism, in that it must content itself with grasping actions alone, for want of being able to define the essence of the cult. The liberal principle had been recalled by the minister and certain parliamentarians: “In France, one judges not convictions, but reprehensible behaviour punished by the law” (29).

The law does in fact contain provisions that take account of this fundamental principle. The dissolution of the cult can only be decided when final criminal convictions have been handed down on a limitative list of offences. In a domain touching on freedom of opinion, the fine for disseminating messages aimed at young people, by a group that pursues psychological or physical subjection, could resemble an offence of opinion.

But it can only be applied if that legal entity has been the object of final criminal convictions according to a limitative list.

One cannot help thinking, however, that this liberal attitude is also the fruit of the incapacity to give a definition of the cult, and that of necessity virtue must be made (30). The parliamentarians gave two different reasons for it. There is, of course, the reason of principle: respect for freedom of belief and of association.

The rapporteur in the Senate and author of the initial bill justified the senators’ choice thus: “You will note that the law commission did not use the word cult at any point, and that it in no case attempts to define the cult. Any attempt at definition would lead us to injustices, to implicating religious minorities. Now, this bill means to be respectful of freedom of belief and freedom of association” (31). The neutrality of the State explains “why no legal definition of religions exists despite certain attempts, including that of the National Assembly’s commission of inquiry which, in 1995, relied on bundles of indicators. In the same way, our Constitution contains no definition of political parties, confining itself to specifying that they contribute to the expression of suffrage” (32). The second reason often invoked is practical: the elusiveness of the cult phenomenon and its protean character. The minister acknowledges before the Senate the difficulty of legally defining cults, and before the National Assembly that “everyone has their own idea, yet no definition exists” (33). It was pointed out that the diversity of cults constrained Parliament to adopt very broad definitions which can prove dangerous for liberty (34). It is in the Senate that this difficulty is evoked with some anxiety: “Will the State know how to discern and designate cults when the most informed sociologists cannot agree on what a cult really is?… Let us not forget that many religious movements were described as cults at the outset, and that the definition can vary according to eras and contexts.” (35) That is the great theme evoked by the only declared opponent of the text, Mr Caldaguès: “Mr About and the commission have thus attempted to square the circle, namely to give a definition of the containers and the contents of the shelf. These definitions had to be precise, intelligible, directly usable by those charged with applying the law…” (36) He notes that on first reading the commission had been more prudent in avoiding speaking of cults and in defining the object of the law only by dangerous actions. To speak of cults while merely adding “groups which infringe human rights” is absolutely not sufficient. If one draws up a list of these groups, one will not be able to keep to cults alone. It should be noted that a single parliamentarian had dared to assert, after acknowledging that “the legal definition of the cult was almost mission impossible”, that a cult group could be identified from its behaviour by using the ten criteria proposed by the 1995 commission of inquiry (37). Armed with this certainty, the deputy proposed creating a list of cult associations fixed by decree in the Conseil d’État, a list intended to help mayors in their fight against cults (notably through refusal of building permits) (38).

Whatever the reasons (resigned powerlessness, respect for fundamental liberties), there is thus a broad consensus not to give a definition of the cult. One may wonder, however, whether a de facto implicit definition does not run through the debates, indeed through the law.

The parliamentarians’ agreement was reached on the self-evidence of a “social scourge” whose diagnosis is largely convergent. In the National Assembly, the minister, after acknowledging the difficulties of definition, nevertheless proposed a better characterisation of cult groups: those are targeted which have as their aim or effect to create or exploit the psychological or physical dependence of the persons taking part in the association’s activities (39).

It is from such a definition that C. Picard draws the certainty that parties, trade unions or associations exercising their activities within the framework of the law and respect for democracy can never be implicated (40). The legislator’s intention is thus indeed to circumscribe what constitutes the essence of the cult, that is, essentially, mental manipulation. The drafting of the text does not make it possible to reserve its application to cults alone. The abuse of a state of weakness is defined only in relation to the victim and not by the agent of that abuse. It is therefore liable to be applied to many other natural or legal persons: nurse, doctor, family, member of a religious order — more generally, all persons in contact with a “weakened” person.

The law simply provides that when the offender is the leader of a group that pursues activities of psychological or physical subjection, the penalty is aggravated. The text thus remains general enough that the new offence does not concern cults alone, and does not constitute a specific law despite its title and its fairly explicit intention.

The ambiguity of the legislator’s position This curious presence/absence of cults in the law of 2001 engenders a suspicion of ambiguity. Should one see in it a double discourse or an inconsistency? In any event, this presence/absence of cults in the legal text is a source of difficulties and of troublesome ambiguities in a law of liberties. Two examples may be retained.

An arbitrary application of the law, for want of a definition of the cult? This risk is all the more evident in that the legislator itself took its measure at least once. There is, in law, no liberty without precise definitions and objective criteria. The notion of a legal entity that pursues activities aimed at psychological or physical subjection is not a precise definition of the cult, for it refers in practice to actions whose proof is difficult to adduce, or whose assessment rests largely on subjective elements. One may cite as examples the notions of psychological subjection, of endangerment of the person, of infringement of dignity, or again of infringement of the personality. All these notions will have to be specified (almost created) by the judge. A brief but lively and characteristic debate arose on this subject in the Senate on second reading. To Senator Caldaguès, worried by the vagueness of the offence of abuse of weakness, which could make it possible to convict a great many people, the rapporteur and the minister reaffirmed their confidence in judges to tell the difference between an advertisement and an abuse of weakness. “I believe magistrates perfectly capable of distinguishing a true abuse from a false one.” (41) This brief tussle is revealing. The social debate on what a cult is was not really settled by the legislator. The law did not assume its proper responsibility and function; the burden of definitions is, in practice, deferred to the judge, who will deal with it only case by case. While it is inevitable that there should be case law, since a criminal penalty and a fundamental liberty are at stake, one is entitled to expect from the written law stricter and more demanding norms of legal certainty. Instead of an explicit management of the problem — that is, a political management — refuge is taken in an implicit, because jurisprudential, management.

The legislator might have been led to conclusions more favourable to liberty had it known how to draw all the consequences of the debate on the powers of the mayor.

That debate was characteristic of the law’s ambiguities: it is precisely the absence of a legal definition of the cult, far more than a principled liberalism of Parliament, that led to the rejection of the mayor’s powers despite the minister’s favourable opinion. The episode revealed a will to increased repression which yielded only before the practical incapacity to carry it out. With the aim of responding to mayors who expressed a feeling of powerlessness before the proliferation of cults, the National Assembly had granted them powers to refuse building permits and to define a perimeter limiting the installation or publicity of cult groups near schools, clinics, hospitals, retirement homes, …. The minister had been hostile as regards the possibility of refusing the building permit, and likewise as to the principle of the protective perimeter (42), observing that in town this amounted to prohibiting any installation. The Assembly overrode this nevertheless fundamental objection, thereby giving the measure of its repressive will towards cults. It was the Senate that refused the measure, but it did so not for reasons of principle or respect for liberties but out of a wholly pragmatic prudence. Despite the contrary opinion of the minister, who had meanwhile become favourable to the measure, the upper house rejected the principle of the protective perimeter, which nevertheless constituted a very effective means of preventing a cult from setting up somewhere. The rapporteur observed that “the idea is interesting, but the law commission wondered how the mayor could exercise this power when he does not have the necessary information” (43). More precisely still, the president of the law commission underlined that “we are in a domain where we very heavily engage the responsibility of mayors even though they do not truly have the necessary elements of information. Whatever the size of the commune, how do you expect a mayor to know that the group about to set up falls within the scope of this text?” (44). Thus the absence of a legal definition of the notion of cult makes repression impossible. One senator nevertheless maintained that if the mayor does not have the intelligence services at his disposal, he remains in a position to know what is happening in his commune. By listening to the inhabitants, and in his soul and conscience, he is capable of taking these difficult decisions (45). Legal criteria are replaced by the vox populi and municipal common sense! It was by insisting on the problems of mayors’ responsibility that article 6 of the text was withdrawn.

A (badly) repressed repressive will? The concern to respect constitutional liberties — whether it was spontaneous, or followed a reminder from the government or the intervention of outside figures — did, on the whole, frame the parliamentarians’ will to repression. Yet the return of the offence of mental manipulation, even after its transformation into the offence of abuse of weakness, shows the vigour of the hostility towards cults considered dangerous (whether they all are by definition, or only some of them).

The notion of cult is understood in a radically negative way, as the rapporteur in the Senate and author of the initial bill underlines: “Today the term cult clearly has a pejorative character (abuse of the credulity of followers), and the label of cult is generally attributed to groups or associations considered dangerous” (46). The debates confirm this purely negative conception. Cults are stigmatised there in various ways: in terms of danger (either for some only, or for all in practice); in terms of the “fight against cults” (France is a reference in this domain); in terms of one of the most burning social issues (proliferation of cults). One cannot help underlining to what extent these debates rest on self-evidences and on overly simple generalisations devoid of sufficient proof.

It is striking that, with two exceptions (47), the use of the term “cult” is completely undifferentiated. No distinction is sketched between different categories, except a vague and unstable distinction between dangerous and non-dangerous cults. For most of the speakers there is no difference between Scientology and the Jehovah’s Witnesses.

The Order of the Solar Temple seems to constitute the archetypal reference for what can happen to any cult. The other implicit self-evidence of these debates is the capacity to distinguish easily between cult and religion, which induces a double self-evidence concerning both the notion of cult and that of religion. The rapporteur in the Senate fully intends to distinguish cults from religious minorities, to avoid infringing the liberties of the latter (48). The rapporteur in the National Assembly upholds the same distinction: “Let us recall that in the secular conception of human rights which is ours, no conflation can be made between cult and religion when what is at issue is a religious practice that is tolerant and respectful of the liberty and integrity of the human person, which tends to elevate persons and not to humiliate and enslave them” (49). The distinction is all the easier and surer in that the cult is clearly identifiable as swindle and mask: “Let us be clear: cult movements, in their immense majority, are gigantic swindling enterprises, veritable ‘money pumps’ which profit from human distress to enrich themselves” (50). This certainty about the notion of religion is found among parliamentarians of whom one may think that religion is not their speciality.

J.-P. Brard, while recalling that he does not want to enter into a theological debate which is not the business of a secular republic, nevertheless analyses the content of convictions: “Organisations of a cult character generally conceal their action under a religious dressing more or less tinged with references to one of the great traditional religions, when it is not a hotchpotch of the most important religions” (51). In speaking of tolerant practice, respectful of liberty and dignity, C. Picard assumes agreement on the concrete meaning of these values. Against such illusions or such deceptions, “the law will make it possible to ensure that the associative screen or religious motivations are not used abusively by organisations whose objective is nothing other than a vast enterprise of material or intellectual swindling aimed at abusing the credulity of some.” (52). Thus, despite the absence of any legal definition of the cult, the debate rests on self-evidences or quasi-self-evidences which make it possible to do without one, or to stand in its place.

This fairly strong repressive will was, on the whole, contained by the liberal legal frame of reference. If all repeated again and again the legal principles of the law of liberties, not all of them drew all the logical conclusions as to what it was possible to do while remaining within a framework of liberty. Many concrete positions contradicted the liberalism of principle. The interplay of the installation perimeter and the refusal of building permits, significant of this “prophylactic” vision of the cult danger (53), could have constituted a formidable weapon given the absence of a legal definition of the cult and the substantial list of protected buildings. The illiberal temptations were numerous. The RPR insisted strongly that administrative dissolution of the association be adopted, quicker than judicial dissolution (54). In the debate on the capacity of protection associations to join proceedings as civil parties against cults, it was maintained that “society has the duty to come to the aid of each of its members when he is in danger, and to protect him, even if he has himself temporarily lost clear consciousness of that danger” (55). The concern for prevention and security leads to choosing a priori action, when the liberal principle is that of a posteriori repression. It even happened that, evoking the excessive freedom of association, a parliamentarian criticised the freedom to declare oneself a religious association [association cultuelle] and proposed that the religious character of an association be recognised at ministerial level. The deputy thus passes from prior declaration to prior authorisation without apparently realising that he is violating a principle that has been constitutional since 1971 (56). Faced with these repressive temptations, the government rather played the role of a safeguard, without ever frontally opposing a consensual parliamentary will. At the moment the minister accepted, in the government’s name, the amendment introducing mental manipulation, she recalled constitutional liberties and notified Parliament of the consultation of the Commission consultative des droits de l’homme. The government’s representative likewise had judicial dissolution prevail, more favourable to liberties because it saves the adversarial debate prior to the dissolution decision (57). It was again the government that proposed limiting the right to join proceedings as a civil party, for associations fighting cults, solely to those recognised as being of public utility (58). The stake is fundamental, since it makes it possible to compel the State to criminal prosecution in the absence of a complaint. There is no longer any need for a victim in the subjective sense; an objective victim suffices — that is, one whose status is determined by the anti-cult associations and the judge. One must finally consider it protective of liberties that the dissolution of the group can only take place after two final criminal convictions. Dissolution can therefore intervene, in principle, only for established acts and not for ideas or convictions. Those acts, prohibited by the penal code, will have been the object of adversarial debate.

In these conditions the amendment which introduced in the National Assembly the offence of mental manipulation appears as a return of the repressed. The idea is old and had long figured among the proposals of UNADFI (59). The Guyard report had clearly rejected it in 1995, but already the Brard report of 1998 was less firm on the subject (60). In reality, in the minds of its promoters, this offence corresponds to what is properly specific to cults.

Here one would truly have the special law whose hypothesis everyone was otherwise dismissing.

The Picard amendment was grafted in the course of examination onto the initial bill, which essentially targeted the dissolution of cult groups. The Garde des Sceaux expressed great prudence, recalling the hostile positions of the parliamentary commissions of inquiry. While acknowledging the usefulness of this offence for victims, she called for further reflection out of concern for respect for human rights and constitutional liberties (61).

The initial definition of the offence as the National Assembly adopted it on first reading comprised three elements: the fact of exerting serious and repeated pressure and of using techniques apt to alter judgment; the fact of practising it within a group that pursues activities having as their aim or effect to create or exploit the psychological or physical dependence of persons taking part in those activities; finally, doing so with a view to leading them, against their will or not, to an act or an abstention gravely prejudicial to them. The definitive text, which results in particular from the criticism of the Commission consultative, abandons the idea of mental manipulation for the notion of abuse of weakness. But the essence of the initial notion subsists, and one may think that objectively the abandonment of mental manipulation remains purely verbal. Admittedly, the law defines more precisely the persons concerned (minors; persons particularly vulnerable by reason of age, illness, infirmity, pregnancy or a mental or physical deficiency, a state which must be known or apparent (62); finally, persons in a state of psychological or physical subjection resulting from the exertion of serious or repeated pressure or from techniques apt to alter judgment). This last category clearly manifests what constitutes the modern fear of cults: losing control of oneself and of one’s will. The law having removed the words “against his will or not”, the question arises whether the person’s consent suffices to make the state of subjection disappear.

Despite these corrections the law remains ambiguous from the point of view of the law of liberties. The notion of a state of weakness is scarcely more objective than that of mental manipulation. It does contain elements of legal objectivity (the minor or the incapable person), but, beyond that, which illnesses, and to what degree, characterise the state of weakness? Moreover, the principle, in private-law relations or in the law of liberties, is that the value of an adult’s consent can only be set aside for exceptional reasons. Should one reason differently from private law? One must remember, in addition, that particularly important liberties are at stake. Everything depends on the assessment made of two considerations. The state of weakness is expected to be objectively ascertainable. Now, a large part of that state results from psychic states difficult to measure and interpret (63). This drive to objectify situations and interpretations runs largely counter to the subjectivity of modern individualism — that is, to a situation in which the individual himself assigns, alone or in a group he has chosen, the meaning and value of the things and events that concern him. The minister spoke of a “text of social and ethical regulation” (64); it is rather the legal regulation of an ethic. What ethic can be at issue in a democratic and secular republic? In principle, only the ethic of liberty. The objectification of situations in which the legislator engages rests on the ambivalences of the notion of liberty. Such a position refers, beneath the displayed consensus, to differences of a cultural and politico-ideological order: either liberty is conceived as a form and a procedure ensuring the autonomy of individuals’ will; or it rests on a content — in practice, the philosophy that allowed the emergence of this society that liberates the individual (rationalism, …). One finds here something of J. Baubérot’s distinction between freedom of conscience and freedom of thought; and the legislative debate confirms the paradox he observed in the legislator’s attitude, at once hesitant to intervene out of respect for freedom of conscience, and refusing to give reasons for its decision to include a group in the list of cults (65). The second consideration concerns the assessment of the urgency and gravity of the cult danger: either a simple worry calling for vigilance; or the feeling of a grave danger.

Weighing on this debate is the at once unreal and real character of the perception of the cult phenomenon by parliamentarians, in tune with public opinion. The near-unanimous speeches use the clichés of public debate as self-evidences: infiltration, manipulation, contamination, …

All these elements contribute to the final assessment one must make of this law in terms of liberty, since it gives itself the aim of protecting and respecting the liberty of individuals. Respect for liberties cannot remain at the level of discourse alone; the notions used and the concepts implemented in the law must also correspond to it. Here are added together the existence of legal criteria whose subjectivity of assessment is far too great, and the absence of a definition of the object of the law — the cult.

Conclusion The Garde des Sceaux spoke of a “text of social and ethical regulation”. Are the ambiguities of the law not the reflection of the difficulties of regulating religious phenomena in a secular State? The simplest method of regulation, where a fundamental liberty is concerned, is the legal regulation of the ordinary law.

It ignores beliefs or convictions (religious or not) because they are free, and knows only acts, when they violate the law and public order. There is no need to pronounce on the content or nature of convictions in order to settle their material consequences.

In this sense the context of “religion in fragments” does not affect this type of regulation. Why did the French legislator not keep to this model, as it had nevertheless long proclaimed? French laïcité had entrusted the essential part of regulation to the “recognised” religious institutions, for the Separation had not excluded all idea of regulating the religious. According to the confessional model described by Danièle Hervieu-Léger, to them fell the substantive assessment of the socially acceptable religious at a given moment. The secular State retained only purely external regulation and left to the traditional Churches the internal regulation of belief. With the exhaustion of this form of social regulation in the contemporary period, does not everything happen as if the secular legislator were constrained, volens nolens, to reassume this function of internal regulation which the Churches no longer manage to assume satisfactorily? From the previous internal regulation entrusted to civil society, one is obliged to return to a State regulation. This form of regulation is constrained to go further than the ordinary-law legal regulation of convictions. Indeed, it must, even if indirectly, carry out a sorting of religious activities from the point of view of their social insertion — a selection previously delegated to accredited institutions of civil society.

Beyond the fact that this regulation contradicts the principle of separation, entrusting this type of regulation to the State is absolutely not self-evident, if one is willing to remember that the exit from the wars of religion in the broad sense came about through the refusal to see the State sanction a religious truth. Moreover, J.-P. Willaime is right to underline that the cult religious does not pose the State problems different from religious intransigence or integralism within the “recognised” religions (66). And with those, the Republic came to terms from the outset.

Beyond these difficulties, the main explanation for the astonishing ambiguities of the law comes from the fact that this regulation is commanded by anxiety, indeed by an authentic fear of cults.

Despite the self-evidences of public opinion, which the parliamentarians seem to reflect passively through the much-vaunted consensus, this fear was not able to circumscribe its object precisely. One thus obtains a law without a precise object, subject to all the ramblings of fear: constantly naming cults and refusing to define them; omnipresent in the legislative debate of which they are the sole motive, they are absent from the legal text; keeping in principle to the criminal acts alone of cult groups and their leaders (less so of their members), yet claiming to pass over a subjectivity (admittedly led astray and weak) whose will is decreed worthless; objectifying the state of psychic weakness in a world where individual subjectivity ought to triumph without remainder.

This law, whose object is so precise in the legislator’s intentions and so strangely absent from the legal text, is deferred to the interpretation the judge will give of it. The definition of its object — the cult — thus risks being carried out by the judge in the sole light of majority sociocultural self-evidences and under the pressure of majority public opinion. The judge will find it hard to escape this sort of “common sense”, since he cannot rely on a legal definition external to and independent of that common opinion. One may well see in it a form of regulation by civil society, but it is not legal regulation in the sense understood, for example, by the European Convention on Human Rights: foreseeability of the law, necessity and proportionality of infringements of liberties. One risks, on the contrary, finding there a “tyranny of the majority” to the detriment of non-conformist minorities. The republican legislator would have gained by confessing its perplexity before cults more clearly still — but it is true that this would probably have led it not to legislate. It could have done so, for example, in the manner of F. Champion and M. Cohen. Observing the ever clearer separation of the dominant liberal conception of religion from classical religion, but also from those novel and therefore worrying forms of the religious, they concluded: “Our deep personal conviction leads us to welcome the development of such a ‘liberal’ religious; but it seems to us that it is not possible to condemn, without duly considered judgment, all the religious — and parareligious — forms that do not go in the same direction”.

The religious incompetence of the State remains the principle, but does not prevent civil society from developing vigilance and education against a totalising and fanatical religious (67). All in all, the law of 12 June 2001 is only a mediocre law which passively reflects the perplexities of French public opinion with regard to what it calls cults. For want of understanding its object and the meaning of these transformations of the religious, it risks either infringing a fundamental liberty or, perhaps, because of that risk, remaining a dead letter. That is probably the best one can hope for. The ordinary-law legal regulation of convictions would have had the advantage of leaving open in society the discussion on these new religious movements. It ensures, admittedly, only a purely external and minimal regulation — the one that guarantees the public order of a society of liberty. As for internal regulation, it should be left to believers in their debate with the rest of society, even if at the price of periodic reconfigurations which the wisdom of the secular State would be not to concern itself with.

Patrice ROLLAND

Université Paris XII Groupe de Sociologie des Religions et de la Laïcité - CNRS-EPHE

Abstract In 2001, the French legislator resolved to do what it had long refused to do: a law against cults. This law presents the paradox of being explicitly directed against cults while neither defining nor naming them a single time in its text. One might see in this the effect of a liberal legal regulation: judging only acts and not opinions. The transformation of the offence of mental manipulation into the offence of abuse of weakness must not mask the repressive intention of the legislator. That intention is restrained by respect for certain principles of the law of liberties, but it is above all the incapacity to define the object of its fear that bridles the legislator. For want of being able to define the notion of cult, it must renounce some of the most coercive measures. An analysis of the debates reveals a great poverty in the understanding of the phenomenon of “cults”. The French legislator merely reflects passively the common perception of a public opinion that reduces the phenomenon to a few exceptional cases.

(1) Mission interministérielle de lutte contre les sectes. Report (January 2000), p. 7.

(2) Cf. the 2001 report, p. 6: “A sign of the civic vigilance of opinion with regard to the cult phenomenon and of the measures taken by the public authorities, cult proselytism seems to continue to mark time in France. What seemed a positive indication mentioned in the report for the year 2000 appears to be confirmed on examination of the information coming from the vigilance cells set up by the 1997 and 1999 circulars of the Ministry of the Interior”.

(3) Francis MESSNER, ed., Les ” sectes ” et le droit en France, Paris, PUF, 1999.

(4) R. Salles (UDF), National Assembly, sitting of 22 June 2000, JOAN Friday 13 June 2000, p. 5734 (hereinafter cited AN I).

(5) Th. Foucaud (Communist), Senate, sitting of 16 December 1999, JO Sénat, p. 7693 (hereinafter cited Sénat I).

(6) D. Hoeffel (Union centriste), Senate, sitting of 3 May 2001, JO Sénat, p. 1716 (hereinafter cited Sénat II).

(7) For an inventory of the repressive resources offered by criminal law, see Renée KOERING-JOULIN “Activités sectaires et droit pénal” in Francis MESSNER, ed., op. cit., pp. 197-208.

(8) A fairly rare example of a parliamentary bill reaching legislative debate by a deliberate choice of the government. The government thus associated itself with an initiative that did not come from it.

(9) This is, in practice, the case of Senator Caldaguès (RPR) alone, who intervened only on second reading and was once joined by his colleague Hamel (RPR), cf. Sénat II, pp. 1719 and 1722.

(10) Of the 18 substantive interventions in the two chambers, 11 parliamentarians had belonged either to the orientation council of the Mission interministérielle de lutte contre les sectes (as of 5 February 2001 these were Nicolas About, J.-P. Brard, Martine David, Serge Lagauche), or to the two parliamentary commissions of inquiry on cults. The orientation council of the MILS was able to examine a first version of the About bill (cf. report of January 2000, p. 58).

(11) Cf. Ph. Vuilque (Socialist), AN I, p. 5725; J.-P. Brard (Communist) AN I, p. 5728; M. David (Socialist), AN I, p. 5734; J. Guyard (Communist) AN I, p. 5736; S. Lagauche (Socialist) Sénat II, p. 1715; C. Picard (Socialist), AN II, p. 3681; J.-P. Brard AN II, p. 3682; Ph. Vuilque, AN II, p. 3685.

(12) Cf. M. David AN I, p. 5734; J. Guyard, AN I, pp. 5736-5737; J.-P. Brard, AN II, p. 3682.

(13) D. Hoeffel and D. Bussereau (Démocratie libérale).

(14) Cf. Resolution 1309 (2002) adopted on 18 November 2002 by the Standing Committee of the Parliamentary Assembly of the Council of Europe following the Akçali report. The expert (Mr Voyame) had made a very moderate report on the French law, concluding, subject to its application and despite the imprecision of the notion of “psychological subjection”, that it was compatible with the European Convention.

(15) Th. Foucaud (CRC) (Sénat I) p. 7693.

(16) D. Bussereau, AN I, p. 5728.

(17) Danièle HERVIEU-LÉGER, La religion en miettes ou la question des sectes, Paris, Calmann-Lévy, 2001, pp. 44s. (Cf. Arch. 118, pp. 29-44).

(18) The point is underlined with satisfaction by a deputy (R. Salles, AN I, p. 5755).

(19) N. About (Républicain Indépendant) Sénat II, p. 1738.

(20) An argument the French government put forward in its defence in the case Fédération chrétienne des témoins de Jéhovah de France v. France, European Court of Human Rights, inadmissibility decision of 6 November 2001, p. 11. It specified that “the applicant could not fall, by the mere fact of its existence as a legal entity, within the scope of this law in its criminal aspect”.

(21) Jean-François SEUVIC writes: “Remove the title of the law and its whole content becomes autonomous, disperses and becomes commonplace”. Revue de science criminelle, October-December 2001, p. 840.

(22) C. Picard, AN I, p. 5721; she makes a reminder a little later (p. 5751): “In no case could trade unions, professional groupings or political movements be targeted”.

(23) N. About, Sénat II, p. 1738.

(24) On the exact import and concrete consequences of the liberal option of European law in religious matters, see the fine distinctions of Silvio FERRARI “Le droit européen en matière religieuse et ses conséquences pour les sectes” in Françoise CHAMPION and Martine COHEN, eds., Sectes et démocratie, Paris, Seuil, 1999, notably pp. 367-372.

(25) C. Picard, AN I, p. 5721.

(26) Cf. E. Doligé (RPR) AN I p. 5730; S. Lagauche, Sénat II p. 1715; F. Grignon (Union centriste) Sénat II, p. 1734; N. About, Sénat II, p. 1735; Ph. Vuilque AN II, p. 3685; R. André (RPR), AN II, p. 3689.

(27) M. Lebranchu, Sénat II, p. 1735.

(28) Guyard report “Les sectes en France”, no. 2468, of 22 December 1995, pp. 97-100; the second parliamentary report “Les sectes et l’argent” no. 1687 of 10 June 1999 (pp. 215-216) opines in the same direction, though less convinced.

(29) Ph. Vuilque, AN I, p. 5725; see the same reminder by D. Derycke (Socialist) Sénat I, p. 7692, citing an intervention of the Garde des Sceaux.

(30) This is what the report of the Observatoire interministériel sur les sectes for the year 1997 does (p. 43): ”… it considers that attempting to define and freeze in a text, necessarily restrictively, a notion whose content is evolving and unmasterable — beyond the legislative and constitutional obstacles this task would run into — would not be of a nature to facilitate the exercise of public prosecution against the excesses of this phenomenon, and would lead to excluding all criminal prosecution on other grounds”. The definition of the cult would thus be an obstacle to repression. For more details on this difficulty in grasping the object of State intervention, see Patrice ROLLAND “Le phénomène sectaire au regard de la laïcité à la française” in Jean BAUDOUIN and Philippe PORTIER, eds., La laïcité, une valeur pour aujourd’hui ? Contestations et renégociations du modèle français, Rennes, Presses universitaires de Rennes, 2001, pp. 332-336.

(31) N. About, Sénat I, p. 7690.

(32) D. Bussereau, AN I, p. 5727.

(33) E. Guigou, respectively, Sénat I, p. 7691 and AN I, p. 5722. On this difficulty, see in particular Jean-Marie WOERHLING “Une définition juridique des sectes ?” in Francis MESSNER, op. cit., pp. 63-90. Noting the absence of a legal definition and the great difficulty of finding one, the author prefers to displace the problem and to ask, from the State’s point of view, which social beliefs are useful.

(34) D. Bussereau, AN I, p. 5728.

(35) D. Hoeffel, Sénat II, p. 1715.

(36) M. Caldaguès, Sénat II, p. 1716

(37) R. Salles, AN II, p. 5734 and 5735. It should be recalled that these criteria have no legal value and that they appeal to very subjective notions (mental destabilisation, indoctrination of children, more or less antisocial discourse, attempted infiltration of public authorities).

(38) R. Salles, AN II, pp. 5748-5749.

(39) E. Guigou, AN I, p. 5724.

(40) C. Picard, AN I, p. 5721.

(41) M. Lebranchu, Garde des Sceaux, Sénat II, p. 1736.

(42) He made the comparison with “sex-shops”, which gave rise to a play on words revealing of a certain way of seeing cults. B. Roman, president of the law commission, spoke of “sectes-shops” (AN I, pp. 5747 and 5748).

(43) N. About, Sénat II, p. 1729

(44) J. Larché (R.I.) Sénat II, p. 1732.

(45) Ph. Marini (RPR), Sénat II, p. 1731.

(46) N. About, report made in the name of the law commission of 14 December 1999, no. 131, p. 7.

(47) S. Blisko (Socialist): “We all have difficulty distinguishing between a cult and a small religious movement, a somewhat original, indeed fundamentalist, religious movement” (AN I, p. 5738); D. Hoeffel is the one who dwells at greatest length on the question of the definition of cults (Sénat II, p. 1715).

(48) N. About, Sénat I, p. 7690.

(49) C. Picard, AN II, p. 3681.

(50) Ph. Vuilque, AN I, p. 5725.

(51) J.-P. Brard, AN I, p. 5729.

(52) C. Picard, AN I, p. 5721.

(53) Cf. Danièle HERVIEU-LÉGER, op. cit., pp. 58s.

(54) É. Doligé, AN I, pp. 5730-5731.

(55) J.-P. Brard, AN I, p. 5728.

(56) E. Doligé, AN I, p. 5732.

(57) D. Vaillant, AN I, p. 5741.

(58) AN I, p. 5752.

(59) Proposal of 1992 cited in the Guyard report, National Assembly, no. 2468, 20 December 1995, p. 97.

(60) Guyard report, op. cit., p. 100. The Brard report “Les sectes et l’argent”, no. 1687, of 10 June 1999, p. 216, dismisses the offence but far less clearly, which leads the MILS report (January 2000) to consider that it asks for a new offence of mental manipulation to be studied (pp. 50; 51). The MILS report acknowledges that the criterion of mental destabilisation is interesting but “presents, in the current state of science, a subjective character not easy to handle in law” (p. 52).

(61) AN I, pp. 5724-5725; 5751.

(62) In the Lyon Scientology case, knowledge of the victim’s depressive state constituted a very important element in the conviction: CA Lyon, 28 July 1997, Min. public v. Veau and others, JCP G 1998, II, 10025, note Renard.

(63) Florence BELLIVIER speaks in this regard of the “Achilles heel of the mechanism”, Revue trimestrielle de droit civil, no. 3, July-September 2001, p. 686.

(64) M. Lebranchu, Sénat II, p. 1739: “One often speaks of regulation. In this instance, it is a text of social and ethical regulation. It is important that ethical regulation should have its place at the start of this century.”

(65) Cf. Jean BAUBÉROT “Laïcité, sectes, société” in Françoise CHAMPION and Martine COHEN, op. cit., pp. 315-317; 319-320.

(66) Jean Paul WILLAIME “Les définitions sociologiques de la secte” in Francis MESSNER, op. cit., pp. 45-46.

(67) Françoise CHAMPION and Martine COHEN, “Introduction”, in Françoise CHAMPION and Martine COHEN, op. cit., pp. 54-55 Source: http://assr.revues.org/docannexe2449.html